Abstract

Footnotes (107)

Using the URL or DOI link below will
ensure access to this page indefinitely

Based on your IP address, your paper is being delivered by:

New York, USA

Processing request.

Illinois, USA

Processing request.

Brussels, Belgium

Processing request.

Seoul, Korea

Processing request.

California, USA

Processing request.

If you have any problems downloading this paper,please click on another Download Location above, or view our FAQFile name: SSRN-id1788423. ; Size: 273K

You will receive a perfect bound, 8.5 x 11 inch, black and white printed copy of this PDF document with a glossy color cover. Currently shipping to U.S. addresses only. Your order will ship within 3 business days. For more details, view our FAQ.

Quantity:Total Price = $9.99 plus shipping (U.S. Only)

If you have any problems with this purchase, please contact us for assistance by email: Support@SSRN.com or by phone: 877-SSRNHelp (877 777 6435) in the United States, or +1 585 442 8170 outside of the United States. We are open Monday through Friday between the hours of 8:30AM and 6:00PM, United States Eastern.

A Paradox in Overcriminalization

Given that one of the central roles of political philosophy and criminal theory is illuminating the borders of justified state punishment, the modern crisis of overcriminalization is a painful defeat. Generations of legal theory, grounded in liberalism, has done little to stem the tide of criminal law and the explosion of criminal punishment.

One notable island of decriminalization has been the retreat of criminal punishment surrounding marijuana consumption. With the combination of medical marijuana regimes, reduction of punishment, and halting steps toward full decriminalization, marijuana stands in stark contrast to the highly visible war on drugs that has driven much contemporary overcriminalization.

This piece argues that opponents of overcriminalization have much to learn from the functional decriminalization of marijuana. Marijuana decriminalization has not been successful because of a swing in public attitudes about marijuana use. Rather, decriminalization is possible because advocates can marshal agreement across philosophical starting points, bringing both liberals and nonliberals into consensus. This groundswell demonstrates that legal theorists concerned about containing state power must look beyond liberal theories.

Most importantly, this example reveals that legal theorists interested in turning back the tide of overcriminalization must do more than wait for areas of Rawlsian overlapping consensus; they must reach out to generate consensus with Rawlsian conjecture by viewing law not only from the liberal vantage point but from the nonliberal’s perspective as well.